Dharti Associates, Surat V. The Dy.CIT, CPC-TDS,

ITA 100/AHD/2015

• Counselvise Citation: 10020514 RSA 2015
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-09-2015
• Assessment Year: 2013-2014
• Appeal Filed On: 09-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANITA HARDASANISR
• Assessee Lawyers: RASESH SHAH
• Section: 154

Judgement Text

IN THE INCOME TAX AP PELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR , ACCOUNTANT MEMBER AND S.S. GODARA JUDICIAL MEMBER I . T. A. NO. 1 00 / AHD/20 15 (ASS TT. YEAR 20 13 - 14 ) DHARTI ASSOCIATES PLOT NO.A - 16, SVP ROAD NO.3, UDHYOG NAGAR, UDHANA, SURAT - 394210. PAN ABFFS 9712D VS THE DEPUTY COMMISSIO NER OF INCOME TAX CPC TDS GHAZIABAD, UTTARPRADESH. (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI RAS ESH SHAH, A.R. REVENUE BY SMT.ANITA HARDASANI,SR.D.R. / DATE OF HEARING : 10 - 09 - 2015 / DATE OF PRONOUNCEMENT : 29 - 09 - 2015 / O R D E R PER S.S. GODARA JUDICIAL MEMBER : THIS ASSESSEE S APPEAL FOR ASSESSMENT YEAR 2013 - 14 ARISES FROM THE ORDER OF CIT (A) - IV, SURAT IN CASE NO.CAS - IV/200/13 - 14 DATED 29 - 9 - 2014 IN PROCEEDINGS UNDER SECTION 154 R.W.S.200A OF THE INCOME TAX ACT,1961 FOR SHORT THE ACT . ITA NO . 100/ AHD/201 5 ASSESSMENT YEAR 2013 - 14 DHARTI ASSOCIATES. 2 2. THE SOLE SUBSTANTIVE GROUN D RAISED IN THIS APPEAL CHALLENGES THE LOWER APPELLATE ORDER CONFIRMING ASSESSING OFFICER S ACTION IN LEVYING LATE FILING FEES OF RS.27,446/ - DATED 15 - 2 - 2014 PASS ED U/S. 154 R.W.S. 200A. THE ASSESSEE FILES BEFORE US A COPY OF THE TRIBUNAL S ORDER IN ITA NO. 90/ASR/2015 S IBIA HEALTH C ARE PVT. LTD. V/S. DCIT DECIDED ON 9 - 6 - 2014 HOLDING THAT SECTION 234E LEVY NOT SUSTAINABLE BEFORE 1 - 6 - 2015 AS UNDER: - 5. WE MAY PRODUCE, FOR READY REFERENCE, SECTION 234E OF THE ACT, WHICH WAS INSERTED BY THE FINANCE ACT, 2012 AN D WAS BROUGHT INTO EFFECT FROM 1 ST JULY,2012. THIS STATUTORY PROVISION IS AS FOLLOWS: 234E. FEE FOR DEFAULTS IN FURNISHING STATEMENTS (1) WITHOUT PREJUDICE TO THE PROVISIONS OF THE ACT, WHERE A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEMENT WITHIN THE TIME PRESCRIBED IN SUB - SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB - SECTION (3) OF SECTION 206C, HE SHALL BE LIABLE TO PAY, BY WAY OF FEE, A SUM OF TWO HUNDRED RUPEES FOR EVERY DAY DURING WHICH THE FAILURE CONTINUES. (2) THE AMOUNT OF FEE REFE RRED TO IN SUB - SECTION(1) SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTIBLE, AS THE CASE MAY BE. (3) THE AMOUNT OF FEE REFERRED TO IN SUB - SECTION (1) SHALL BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERED A STATEMENT IN ACCORDANCE WITH SUB - SECTION (3)OF SECTION 200 OR THE PROVISO TO SUB - SECTION (3) OF SECTION 206C. (4) THE PROVISIONS OF THIS SECTION SHALL APPLY TO A STATEMENT REFERRED TO IN SUB - SECTION (3) OF SECTION 200 ITA NO . 100/ AHD/201 5 ASSESSMENT YEAR 2013 - 14 DHARTI ASSOCIATES. 3 OR THE PROVISO TO SUB - SECTION (3) OF SECTION 206C WHICH IS TO BE DELIV ERED OR CAUSED TO BE DELIVERED FOR TAX DEDUCTED AT SOURCE OR TAX COLLECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTER THE 1 ST DAY OF JULY,2012. 6. WE MAY ALSO REPRODUCE THE SECTION 200A WHICH WAS INSERTED BY THE FINANCE ACT,2009 WITH EFFECT FROM 1 ST APRIL ,2010.THIS STATUTORY PROVISION, AS IT STOOD AT THE RELEVANT POINT OF TIME, WAS AS FOLLOWS: 200A: PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE. (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE, OR A CORRECTION STATEMENT, HAS BEEN MADE BY A PERSON DEDUC TING ANY SUM (HEREAFTER REFERRED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200, SUCH STATEMENT SHALL BE PROCESSED IN THE FOLLOWING MANNER, NAMELY: - (A) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL BE COMPUTED AFTER MAKING THE FOLLOWING ADJUSTMENTS, NAMEL Y: - (I) ANY ARITHMETICAL ERROR IN THE STATEMENT;OR (II) AN INCORRECT CLAIM, APPARENT FROM ANY INFORMATION IN THE STATEMENT; (B) THE INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF AMOUNT COMPUTED UNDER CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 200 AND ITA NO . 100/ AHD/201 5 ASSESSMENT YEAR 2013 - 14 DHARTI ASSOCIATES. 4 SECTION 201, AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST; (D) AN INTIMATION SH ALL BE PREPARED OR GENERATED AND SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (C ); AND (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PURSUANCE OF THE DETERMINATION UNDER CLAUSE (C) S HALL BE GRANTED TO THE DEDUCTOR: PROVIDED THAT NO INTIMATION UNDER THIS SUB - SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE STATEMENT IS FILED. EXPLANATION: FOR THE PURPOSES OF THIS SUB - SECTION, AN INCO RRECT CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMENT SHALL MEAN A CLAIM, ON THE BASIS OF AN ENTRY, IN THE STATEMENT (I) OF AN ITEM, WHICH IS INCONSISTENT WITH ANOTHER ENTRY OF THE SAME OR SOME OTHER ITEM IN SUCH STATEMENT; (II) IN RESPECT OF RATE OF DEDUC TION OF TAX AT SOURCE, WHERE SUCH RATE IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT; (2) FOR THE PURPOSES OF PROCESSING OF STATEMENT UNDER SUB - SECTION (1), THE BOARD MAY MAKE A SCHEME FOR CENTRALIZED PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE TAX PAYABLE BY, OR ITA NO . 100/ AHD/201 5 ASSESSMENT YEAR 2013 - 14 DHARTI ASSOCIATES. 5 THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDER THE SAID SUB - SECTION. 7. BY WAY OF FINANCE ACT,2015, AND WITH EFFECT FROM 1 ST JUNE,2015, THERE IS AN AMENDMENT IN SECTION 200A AND THIS AMENDMENT, AS STATED IN THE FINANCE ACT,2015, IS AS FOLLOWS: IN SECTION 200A OF THE INCOME - TAX ACT, IN SUB - SECTI ON(1), FOR CLAUSES (C) TO (E), THE FOLLOWING CLAUSES SHALL BE SUBSTITUTED WITH EFFECT FROM THE 1 ST DAY OF JUNE,2015, NAMELY: - (C) THE FEE, IF ANY, SHALL E COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E; (D) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF THE AMOUNT PAID UNDER SECTION 200 OR SECTION 201 OR SECTION 234E AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST OR FEE; (E) AN INTIMATION SHALL BE PREPARED OR GENERATED AND SENT T O THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (D); AND (F) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PURSUANCE OF THE DETERMINATION UNDER CLAUSE (D) SHALL BE GRANTED TO THE DEDUCTOR. 8. I N EFFECT THUS, POST 1 ST JUNE 2015, IN THE COURSE OF PROCESSING OF A TDS STATEMENT AND ISSUANCE OF INTIMATION UNDER SECTION 200A IN RESPECT THEREOF, AN ADJUSTMENT COULD ALSO BE IN RESPECT OF THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDANCE WITH THE PROVISI ONS OF SECTIO234E . THERE IS NO DISPUTE THAT WHAT IS IMPUGNED IN APPEAL BEFORE US IS THE INTIMATION UNDER SECTION 200A OF THE ACT, AS STATED IN SO MANY WORDS IN THE IMPUGNED ITA NO . 100/ AHD/201 5 ASSESSMENT YEAR 2013 - 14 DHARTI ASSOCIATES. 6 INTIMATION ITSELF, AND, AS THE LAW STOOD, PRIOR TO 1 ST JUNE,2015, THERE WAS NO EN ABLING PROVISION THEREIN FOR RAISING A DEMAND IN RESPECT OF LEVY OF FEES UNDER SECTION 234E. WHILE EXAMINING THE CORRECTNESS OF THE INTIMATION UNDER SECTION 200A, WE HAVE TO BE GUIDED BY THE LIMITED MANDATE OF SECTION 200A, WHICH, AT THE RELEVANT POINT OF TIME, PERMITTED COMPUTATION OF AMOUNT RECOVERABLE FROM OR PAYABLE TO, THE TAX DEDUCTOR AFTER MAKING THE FOLLOWING ADJUSTMENTS: (A). AFTER MAKING ADJUSTMENT ON ACCOUNT OF ARITHMETICAL ERRORS AND INCORRECT CLAIMS APPARENT FROM ANY INFORMATION IN THE STATEMENT - SECTION 200A(1)(A) (B) AFTER MAKING ADJUSTMENT FOR INTEREST, IF ANY COMPUTED ON THE BASIS OF SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT . - SECTION 200A(1)(B) 9. NO OTHER ADJUSTMENTS IN THE AMOUNT REFUNDABL E TO, OR RECOVERABLE FROM, THE TAX DEDUCTOR, WERE PERMISSIBLE IN ACCORDANCE WITH THE LAW AS IT EXISTED AT TAT PINT OF TIME. 10. IN VIEW OF THE ABOVE DISCUSSIONS, IN OUR CONSIDERED VIEW, THE ADJUSTMENT IN RESPECT OF LEVY OF FEES UNDER SECTION 234E WAS INDE ED BEYOND THE SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMPLATED UNDER SECTION 200A. THIS INTIMATION IS AN APPEALABLE ORDER UNDER SECTION 246A(A),AND, THEREFORE, THE CIT (A) OUGHT TO HAVE EXAMINED LEGALITY OF THE ADJUSTMENT MADE UNDER THIS INTIMATION IN THE LIG HT OF THE SCOPE OF THE SECTION 200A. LEARNED CIT (A) HAS NOT DONE SO. HE HAS JUSTIFIED THE LEVY OF FEES ON THE BASIS OF THE PROVISIONS OF SECTION 234E. THAT IS NOT THE ISSUE HERE. THIS ISSUE IS WHETHER SUCH A LEVY COULD BE EFFECTED IN THE COURSE OF INTIMAT ION UNDER SECTION 200A.THE ANSWER IS CLEARLY IN NEGATIVE. NO ITA NO . 100/ AHD/201 5 ASSESSMENT YEAR 2013 - 14 DHARTI ASSOCIATES. 7 OTHER PROVISION ENABLING A DEMAND IN RESPECT OF THIS LEVY HAS BEEN POINTED OUT TO US AND IT IS THUS AN ADMITTED POSITION THAT IN THE ABSENCE OF THE ENABLING PROVISION UNDER SECTION 200A, NO SUCH LEVY COULD BE EFFECTIVE. AS INTIMATION UNDER SECTION 200A, RAISING A DEMAND OR DIRECTING A REFUND TO THE TAX DEDUCTOR, CAN ONLY BE PASSED WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR WITHIN WHICH THE RELATED TDS STATEMENT IS FILED, AND AS THE RELATED TDS STATEMENT IS FILED, AND AS THE RELATED TDS STATEMENT WAS FILED ON 19 TH FEBRUARY, 2014, SUCH A LEVY COULD ONLY HAVE BEEN MADE AT BEST WITHIN 31 ST MARCH, 2015. THAT TIME HAS ALREADY ELAPSED AND THE DEFECT IS THUS NOT CURABLE EVEN AT THIS STAGE. IN VIEW OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRELY OF THE CASE, THE IMPUGNED LEVY OF FEES UNDER SECTION 234E IS UNSUSTAINABLE IN LAW. WE, THEREFORE, UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DELETE THE IMPUGNED LEVY OF FEE UNDER SECTION 234E OF THE ACT . THE ASSESSEE GETS THE RELIEF ACCORDINGLY. 3. WE AFFORDED THE REVENUE AN OPPORTUNITY TO DRAW ANY DISTINCTION ON FACTS OR LAW AS ABOVESTATED DECISION OF LEARNED CO - ORDINATE BENCH. IT FAILS IN POINTING OUT THE SAME. WE ACCEPT ASSESSEE S ARGUMENTS ACCORDI N GLY BY FOLLOWING THE ABOVE EXTRACTED DECISION . ITS SOLE SUBSTANTIVE GROUND SUCCEEDS. 4. THIS ASSESSEE S APPEAL IS ALLOWED. O RDER PRONOUNCED IN THE COUR T ON T U E S D A Y , THE 2 9 T H S E P , 2015 AT AHMEDABAD. S D / - S D / - ( PRAMOD KUMAR) (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBE R DATE: - 2 9 - 09 - 2015 ITA NO . 100/ AHD/201 5 ASSESSMENT YEAR 2013 - 14 DHARTI ASSOCIATES. 8 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A), AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD